With a growing and ageing population the wills, trusts, and probate market continues to expand with recent research indicating that the value of the market exceeded £2 billion in 2021, a large part of which is advice provided in contentious probate matters. The number of claims seeking to declare wills as invalid has almost doubled since 2013.

An increased population naturally results in an increase in death rates, however, other factors also come into play.  The rise in second marriages and more couples choosing to cohabit results in more complex family structures.   

A failure to adequately plan for the distribution of an estate and to communicate the same to relatives can lead to a breakdown in family relations and a dispute following a death. Factor in a long-term rise in property prices - leading to higher value estates - as well as increased use of homemade wills, and the consequence is often probate litigation.  Contentious probate claims cause a lot of distress for the deceased’s family, and they are high risk. It is a common misconception that each side's legal fees will be paid from the estate, however, adverse costs orders are not uncommon, and it is not unusual for the parties to bear their own costs at the conclusion of a claim.

Recognising a need in the market, we have developed a standard policy to cover Inheritance Act claims brought by qualifying dependants left without reasonable financial provision to protect against costs risks.
We are also happy to consider cover for any other contentious probate claims through our bespoke policy procedure.
We shall shortly be sending a brochure by email with further details. If you would like to discuss arranging cover for a contentious probate claim in the meantime then we are very happy to speak with you beforehand.

 

In this quarterly edition we discuss the way in which dispute resolution is conducted and significant developments expected in 2022.

One of the most significant developments expected over the next year is the extension of the fixed recoverable costs regime.  In October this year, it is expected that civil litigators will be introduced to fixed recoverable costs in virtually all civil claims valued at £100,000.00 or less.
The regime is expected to be extended to all civil cases in the fast track up to a value of £25,000.00 in damages, and to most other simple fast track cases valued at £25,000.00 to £100,000.00 in damages provided they meet certain criteria (see Extension of fixed recoverable costs (FRC) regime).

Extension of fixed recoverable costs (FRC) regime
Following a Ministry of Justice (MoJ) consultation and response on extension of FRC the government has confirmed it will implement the following proposals:
 

• Extending fixed recoverable costs to all civil cases in the fast track up to a value of £25,000 in damages. (Currently it is only in place for most fast-track personal injury cases.)
   
• Expanding the fast track to include intermediate cases valued at £25,000 to £100,000 in damages, where the trial should not last longer than three days, with no more than two expert witnesses giving oral evidence for each party, and where the case can be justly and proportionately managed under an expedited procedure. This is subject to exceptions, such as clinical negligence and intellectual property cases. Intermediate cases will not be suitable for the High Court, owing to their relatively low value and lack of complexity. Judges will exercise discretion to ensure that intermediate cases are appropriately allocated. The existing multi-track court fees for these intermediate cases will remain, but the government will keep this under review. No intermediate case should be allowed to exit from the proposed FRC regime, unless there are exceptional circumstances.
   
• Allocating all fast-track cases to one of four bands of complexity.
   
• Ring-fencing fees for counsel in Band 4 (which includes complex tracked possession claims, professional negligence claims and property disputes) and in noise induced hearing loss (NIHL) cases only.
   
• Implementing an uplift of 35% when a successful Part 36 offer has been made, which would apply from the end of the relevant period, and an uplift of 50% where a party has behaved unreasonably. There will be a 25% uplift for each additional claimant in claims arising from the same set of facts, and a London weighting of 12.5%. There may also be a need to make general provision for higher FRC and additional disbursements where claimants were vulnerable.
   
• Implementing a new process and separate grid for NIHL fast track claims valued below £25,000.

The long awaited consultation of the future of clinical negligence claims in England and Wales has received much criticism from The Association of Personal Injury Lawyers (APIL) and other groups representing the legal profession who have called the proposed changes “unfair and inconsistent”.
In clinical negligence cases the element of the ATE premium relating to the costs of a liability and causation report remains recoverable and as it is a disbursement rather than legal costs is not affected by the introduction of Fixed Recoverable Costs in clinical negligence claims.

With over 15 years in business we have become one of the largest After the Event Insurance suppliers in the country.  Our specialist knowledge and experience in Personal Injury litigation means that we understand the continued challenges faced by law firms and our ATE policies continue to offer certainty for parties as to costs.

We can also arrange ATE policies for serious and catastrophic injuries and these can now be requested through the Policy Administration Area of our website and can be easily set up.